MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            14 August 2001                 
	DOCKET NUMBER:   AR2000050074

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison  		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Joe R. Schroeder		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his bad conduct discharge (BCD) be upgraded to honorable.  The applicant dates the discovery of the alleged error or injustice as 24 December 1984 and believes that it is in the interest of justice to consider the application because of his behavior and growth since the discharge and because he believes it will improve his future.  The applicant submits no evidence in support of his request.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant’s military records show:

He enlisted in the Regular Army for a period of 3 years on 11 January 1980.  He completed basic training and advanced training at Fort Knox, Kentucky on 
24 April 1980.  He was awarded military occupational specialty (MOS) 19E10, (Armor Crewman) and was transferred to Germany for duty in his MOS.  

He served from 10 May 1980 to 21 January 1982 and returned to the United States where he was assigned to Fort Bliss, Texas, for duty.

On 19 November 1982, the applicant was convicted by Special court-martial (SPCM), of four specifications of being absent without leave (AWOL), from 
10 – 23 May 1982, from 24 May 1982 to 11 June 1982, from 21 June to 7 July 1982, from 30 August to 18 October 1982.  He also received an additional charge under Article 134 of breaking restriction on 21 June 1982.  He was then sentenced to reduction to pay grade E-1, to confinement at hard labor for 75 days, forfeiture of $380 per month for 75 days, and a BCD.  

On 20 November 1982, the applicant received a prisoner transfer to the Installation Detention Facility, Fort Sill, Oklahoma.  Upon completion of his sentence to confinement he was returned to his parent unit at Fort Bliss, Texas.

On 4 February 1993, the applicant was placed on excess leave to await the pending punitive discharge.

On 2 June 1983, the United States Court of Military Review affirmed the finding of guilty, approved the sentence and ordered the BCD duly executed.

On 28 March 1984, special court-martial Order Number 21 was published by the U.S. Army Air Defense Artillery Center and Fort Bliss, Texas announcing that the sentence had been affirmed, and since the provisions of Article 71c having been complied with, and, that the part of the sentence pertaining to confinement having been complied with, directed that the BCD be duly executed.

On 18 November 1984, the applicant was discharged with a BCD under the provisions of chapter 3, section IV, Army Regulation 635-200, by reason of court-martial, other.  He was credited with 4 years, 4 months and 23 days active military service with a 124 days of lost time due to AWOL and confinement.  He had 658 days of excess leave.  

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in 18 November 1984, the date he was discharged from active duty and signed his report of separation.  The time for the applicant to file a request for correction of any error or injustice expired 18 November 1987.

The application is dated 2 November 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommended a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__WTM__  __REB__  ___JRS__  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000050074	
SUFFIX		
RECON		
DATE BOARDED	20010814	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1984 11 28	
DISCHARGE AUTHORITY	AR 635-200 chapter 3, section IV	
DISCHARGE REASON	A144.68	
BOARD DECISION	DENY	
REVIEW AUTHORITY	A110.02	
ISSUES         1.	A123.01	
2.		
3.		
4.		
5.		
6.